FEDERAL TRADE COMMISSION AND RESTRICTIVE COVENANTS
CHANGING OF THE GUARD AT THE FTC Trump tapped Commissioner Andrew Ferguson to serve as Chair of the Federal Trade Commission (FTC), and the Senate confirmed Mark Meador to fill the vacancy left by former Chair Lina Khan, giving the Republicans a majority. Ferguson’s leadership will likely represent a shift from broad, aggressive rulemaking to more targeted, case-by-case enforcement, emphasizing traditional economic theories of harm. However, he has indicated the FTC will challenge anticompetitive practices in labor markets so employers should not assume that the agency is no longer paying attention to non-compete issues. Read more about Chair Ferguson and Mark Meador’s appointment here.
FERGUSON ANNOUNCES TASK FORCE TO TARGET NON-COMPETES AND OTHER PROVISIONS One of Ferguson’s first acts was launching a Joint Labor Task Force to identify and prosecute labor market practices the agency deems to be “deceptive, unfair, and anticompetitive”—including unfair use of non-compete agreements, “no hire” provisions, and termination penalties. Read more about the Joint Labor Task Force and what employers should know here. TRUMP TERMINATES 2 DEMOCRAT FTC COMMISSIONERS The president continued his unprecedented attempt at reshaping federal agencies when he terminated Alvaro Bedoya and Rebecca Kelly Slaughter in March. The two fired Commissioners filed suit to challenge the terminations and are seeking fast-track status of their lawsuit. Right now, the commission has a 3-0 Republican quorum and majority. Read more about the terminations here.
Predictions for Next 100 Days... and Beyond
• The lawsuit filed by Bedoya and Slaughter will lose steam and fade away. But no more than three commissioners can serve from the same party as the president. We think Trump won’t bother to fill the other two seats and instead will let the agency continue with a 3-0 Republican quorum. • We expect the agency to stop efforts to revive the attempted non-compete ban launched by the prior administration. The ban is effectively dead in the water. • The Joint Labor Task Force will surprise some businesses by identifying and prosecuting labor market practices the agency deems harmful to workers and unfair competition. • But states will continue to regulate this area as federal efforts wane. Five states have already enacted new restrictive covenant laws in 2025. More than 100 restrictive covenant bills are pending around the country, including several non-compete bans. Consider signing up for Blue Pencil Box to receive daily updates on restrictive covenant law across the country.
Michael P. Elkon Partner and Co-Chair, Employee Defection and Trade Secrets Practice Group Atlanta melkon@fisherphillips.com
Robert Yonowitz Partner and Co-Chair, Employee Defection and Trade Secrets Practice Group Irvine ryonowitz@fisherphillips.com
Jonathan Crook Partner Charlotte jcrook@fisherphillips.com
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